Nullifying Dobbs without Congress or the courts

By Liz Murrill

This is a lightly edited excerpt of testimony recently provided to the U.S. Health, Education, Labor, and Pensions Committee hearing titled, “Protecting Women: Exposing the Dangers of Chemical Abortion Drugs.” 

The United States Supreme Court “return[ed] the issue of abortion to the people’s elected representatives” in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 232 (2022). That landmark decision empowered Louisiana, and every state, to decide how to address the issue of abortion.  

Louisiana made its decision declaring that —  “every unborn child is a human being from the moment of conception” — and reaffirming the longstanding policy of the state to protect the right to life of every child, born and unborn. See La. R.S. 40:1061.1. Louisiana prohibits abortion except in cases of fatal fetal anomalies or when “medically necessary to prevent the death or substantial risk of death” or the permanent impairment of a life-sustaining organ of the mother. La. Stat. Ann. § 40:1061; La. Stat. Ann. § 40:1061.1.2; see also Louisiana v. EEOC, 784 F.Supp.3d 886, 895 n.10 (W.D. La. 2025) (citing La. R.S. 40:1061, 14:87.7, 14:87.8.1). But even then, physicians must preserve the dignity of the unborn child by “mak[ing] reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child.” La. Stat. Ann. § 40.1061 (emphasis added). Louisiana’s protection for life includes a prohibition on abortion “by means of an abortion inducing drug.” La. R.S. 14:87.9, And likewise it prohibits aiding and abetting in the procurement or distribution of such drugs.

That should have been the end of it. But the Biden Food and Drug Administration (FDA) had long been planning to circumvent Dobbs. When oral argument in that case indicated Roe v. Wade might be overturned, the Biden FDA promptly announced it would remove the in-person dispensing requirement for abortion pills, thereby authorizing mifepristone to be shipped nationwide. This was not a legal or medically-informed decision, but a purely political one.  

President Biden called Dobbs “an extreme decision” by “not a normal Court” and recommitted to “doing everything in his power” to “protect access” to abortion. He noted: “Some states are saying that they’ll try to ban or severely restrict access to these medications.” To that end, President Biden issued multiple executive orders purporting to mandate access to abortion.  

Within hours of the Supreme Court handing down its decision in Dobbs, notwithstanding a prohibition on mailing abortion pills under the federal Comstock Act, the President directed Health and Human Services Secretary Xavier Becerra to identify “ways to ensure that mifepristone is as widely accessible as possible . . . including when prescribed through telehealth and sent by mail.” The same day, Secretary Becerra announced HHS’s “commitment to ensure every American has access to … medication abortion,” trampling upon the recognized authority of states to ensure medical ethics are properly observed and to protect their citizens from these harmful drugs. President Biden then issued a follow-up executive order directing HHS “to protect and expand access to abortion care, including medication abortion.”

These directives culminated in the revised Risk Evaluation and Mitigation Strategy (REMS) protocols for mifepristone. The 2023 REMS permanently removed restrictions under REMS that previously required in-person dispensing, which, for health and safety reasons, mandated that mifepristone “be dispensed only in certain healthcare settings, specifically clinics, medical offices, and hospitals[.]” That requirement was the only thing standing between the Biden Administration and nationwide abortion access. Its elimination has facilitated widespread “dispensing of mifepristone through the mail.” This is medically dangerous, unethical and illegal in many states.  

The Biden Administration identified the FDA’s 2023 permanent removal of the in-person dispensing requirement as one of its primary responses to Dobbs and the culmination of President Biden’s July 8, 2022, executive order directing HHS to “protect and expand access to abortion care, including medication abortion.” The 2023 REMS were, in fact, a necessary component of the Biden Administration’s plan to “protect and expand access” to abortion post-Dobbs.

The 2023 REMS revision worked as planned. The removal of the in-person dispensing requirement rendered Louisiana and other states’ pro-life laws nearly meaningless. Aid Access — perhaps most well-known among the abortion-drug distribution facilitators — unabashedly credits removal of in-person dispensing for its ability to mail FDA-approved abortion drugs “to people in all 50 states, even those that have banned it.”

To be clear, removing the pre-existing protections under REMS did not legalize distribution of these pills in states that ban them or legalize sending them by mail, which is prohibited by the Comstock Act, so the Biden Administration’s objectives —  as directly stated by the President —  were to facilitate illegal drug distribution in violation of state and federal law as a means of facilitating abortion. The Biden Administration's political objectives entirely subsumed medical ethics as well.  

 Read the full testimony here.

Liz Murrill is the attorney general for the State of Louisiana. 

_{*The opinions expressed in this column are those of the author and do not necessarily reflect the views of HealthPlatform.News.}